Nguyen (Migration)

This matter concerned an application for a Temporary Graduate (subclass 485) visa by Mr. Nguyen. The applicant sought a waiver of the English language proficiency requirement, which stipulated that an English language test must have been undertaken within the 36 months prior to the application. The applicant contended that unique and exceptional circumstances, primarily arising from the COVID-19 pandemic and its associated restrictions, prevented him from meeting this requirement in a timely manner. The case involved a request for Ministerial Intervention, with the applicant seeking compassionate consideration for his circumstances.

The central legal issue before the court was whether the applicant's circumstances constituted "unique or exceptional circumstances" that would justify a waiver of the English language proficiency requirement for his visa application. This involved an assessment of the impact of the COVID-19 pandemic, including lockdowns and the closure of testing centres, on the applicant's ability to fulfil the visa criteria. The court also considered the applicant's personal circumstances, including the birth of his child, his wife's postpartum depression, the death of his mother-in-law, and his own struggles with stress, depression, and anxiety, in determining whether these factors, in conjunction with the pandemic, amounted to unique or exceptional circumstances.

The court acknowledged the significant disruptions caused by the COVID-19 pandemic, particularly the inability to book and attend English language tests due to lockdowns in Victoria. It also recognised the applicant's personal challenges, including the birth of his child, family bereavements, and his mental health struggles, which were exacerbated by the pandemic. However, the court found that while these circumstances were difficult, they did not rise to the level of "unique or exceptional circumstances" as contemplated by the relevant provisions. The court noted that the applicant had eventually met the English language requirement with a PTE test taken on 14 May 2024, which achieved the required score of 51. Despite the applicant's submissions regarding the impact of COVID-19 and his personal health issues, the court ultimately affirmed the decision under review.